Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC371542, Margaret L. Oldendorf, Judge.
Franklin L. Ferguson, Jr., for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Amy Jo Field and Kjehl T. Johansen, Deputy City Attorneys, for Defendants and Respondents.
DOI TODD, J.
The trial court granted summary judgment in favor of defendants and respondents the City of Los Angeles and City of Los Angeles Police Department Chief William J. Bratton (sometimes collectively the City) on the complaint filed against them by plaintiff and appellant David Cano Arellano. Among other claims, appellant alleged that he was arrested and detained without probable cause. After denying appellant’s request for a continuance of the summary judgment hearing, the trial court determined that the undisputed evidence showed no basis for liability.
We affirm. Appellant offered no good cause for a mandatory continuance under Code of Civil Procedure section 437c, subdivision (h), and the trial court properly exercised its discretion in finding no good cause for a discretionary continuance. Nor did the trial court abuse its discretion in declining to permit further oral argument on the motion after appellant failed to file any opposition. Finally, the trial court properly granted summary judgment, as the undisputed evidence established that officers had probable cause to arrest appellant.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s Arrest.
On April 28, 2006, at approximately 8:40 p.m., Los Angeles Police Department Officer Philip Ruiz, together with Officer Rene Banuelos, responded to a radio call of “Ambulance/Assault with a Deadly Weapon in progress at 16347 Chase St[reet].” That address has five guesthouses and the victim, Milan Rasou, resided as a tenant in one of them.
Appellant occasionally refers to Rasou as Milan Pasov.
Rasou told the officers that he was home alone when he heard someone knock on his front door. He opened the door to appellant, the owner of the unit, who entered and told Rasou he needed to move out by the first of the month. When Rasou asked appellant why, appellant told him that new tenants were moving in shortly. Rasou said that he would not leave by the first of the month and needed more time to find another place to live. According to Rasou, appellant became upset and pointed his finger at Rasou to simulate a gun as he said: “‘If you don’t get out, I’m gonna send someone over here to put a gun to your head and you’re gonna move out of here.’” Appellant then added: “‘I have lots of money, I can have someone come here and make you get out of here.’” Fearing for his life, Rasou began to walk toward the front door, but appellant blocked his path. Rasou pushed appellant in the chest to get him out of the way, and then ran out the front door and over a fence to seek a neighbor’s help.
Rene Gleason was at the neighbor’s house when he heard Rasou knocking on the door. Rasou asked Gleason to come with him, stating “‘I’m afraid this guy is gonna kill me.’” After Rasou said that appellant had just threatened to kill him, Gleason called the police at Rasou’s request. The two walked back to Rasou’s unit; they saw appellant and Juan Rabay inside and waited outside for police to arrive.
The officers initially interviewed appellant, who stated that he had gone to Rasou’s unit to ask him to move out. Appellant stated that Rasou became argumentative and began to choke him. Rasou ran out the front door when appellant’s employee, Rabay, came to his aid. Rabay had accompanied appellant to Rasou’s unit, but he did not go inside with the two of them. He saw them talking, and then saw Rasou push appellant in the chest. He ran inside and told Rasou to calm down; Rasou ran out of the unit. The officers did not observe anything on appellant’s neck consistent with being choked.
The officers then placed appellant under arrest for violating Penal Code section 422, making criminal threats. Appellant began complaining of chest pain. He was transported to Mission Community Hospital, treated for a minor chest contusion, and discharged. After discharge, appellant received Miranda warnings and spoke with the officers. Appellant believed he was under arrest at that point. According to appellant, he and Rasou spoke outside Rasou’s unit. Rasou became upset when appellant told him he had to move out and pushed him in the chest against a wood fence. Appellant denied threatening or touching Rasou, or pointing a simulated gun at him.
(Miranda v. Arizona (1966) 384 U.S. 436.)
At his deposition, appellant testified to a version of the events somewhat consistent with these statements, adding that he fell to the ground when Rasou pushed him and that he pushed Rasou when he got back on his feet. Rabay separated the two.
The Pleadings and Summary Judgment Motion.
In May 2007, appellant filed his original complaint; in June 2008, he filed the operative first amended complaint. As against the City, appellant alleged causes of action for unlawful seizure in violation of state-law civil rights provisions, negligence, intentional and negligent infliction of emotional distress, and negligent hiring, training and retention. In August 2008, the trial court set May 4, 2009 as the trial date.
In a prior unpublished decision, we affirmed the judgments in favor of the County of Los Angeles and County of Los Angeles Sheriff Lee Baca following orders sustaining their demurrers without leave to amend. (David Cano Arellano v. County of Los Angeles et al., July 27, 2010, B213224 [nonpub. opn.].)
The City moved for summary judgment in November 2008. It asserted that appellant’s claims failed because the undisputed evidence showed that the officers had probable cause to arrest him. In support of the motion, the City offered the declaration of Officer Ruiz and excerpts of appellant’s deposition.
Though the date for hearing on the motion was originally set for February 4, 2009, the trial court continued the hearing to March 10, 2009 and then to March 16, 2009. Thereafter, the parties stipulated to continue the filing dates for the summary judgment opposition and reply to March 4 and March 11, 2009, respectively.
On February 27, 2009, appellant filed an ex parte application to continue the hearing on the motion to April 2, 2009. Appellant’s counsel submitted a declaration in support of the application in which he averred that he was a solo practitioner and attorney of record in two other matters which required that he file opposition to summary judgment motions on February 24 and 25, 2009. He further declared that a friend and colleague had died unexpectedly on February 17, 2009, with services on February 23, 2009, and that those events had negatively affected his ability to concentrate. With respect to additional evidence, he declared that he deposed Officers Ruiz and Banuelos on February 24, 2009 and the testimony of those officers was “central” to appellant’s allegations. He added that he had been served with responsive “evidentiary documents” also on February 24, 2009, and that those documents were “pertinent” to appellant’s theories of liability against the City. The trial court denied the application.
After appellant failed to file any opposition to the motion, the City filed a notice of nonopposition instead of a reply brief.
On March 16, 2009, the date of the summary judgment hearing, appellant filed another ex parte application seeking a continuance of the motion. He cited the same reasons offered in support of his earlier application, the only addition being that the City had deposed Rabay on March 10, 2009 and “Rabay’s testimony directly contradicts the officers’ representations, that Mr. Arellano was arrested at the 16347 Chase Street address.” Simultaneously, appellant also filed points and authorities in opposition to the motion and Rabay’s declaration. Rabay averred that appellant was not handcuffed or placed under arrest at the apartment complex and that no police officer accompanied appellant in the ambulance ride to the hospital.
At the hearing, appellant’s counsel represented that the circumstances which existed at the time of his first ex parte application continued to exist and justified a continuance. With respect to the additional evidence that could not be obtained to oppose the motion, appellant’s counsel stated: “[T]he evidence does exist. And when we get to the point of discussing probable cause I will tell you exactly what evidence does exist and what evidence even within the separate statement of the City has to be considered by the court as demonstrating a triable issue of fact that precludes summary judgment being granted.”
The trial court denied appellant’s application to continue the hearing date, finding that he had not shown good cause for a continuance. It granted summary judgment, deeming the City’s material facts undisputed and specifically finding that Rabay’s statements were immaterial to the issues raised by the motion. The trial court entered judgment in favor of the City and against appellant, and thereafter denied appellant’s motion for a new trial.
This appeal followed.
DISCUSSION
Appellant raises three issues on appeal. First, he contends the trial court abused its discretion in denying a continuance of the summary judgment hearing. Second, he argues that the trial court abused its discretion in precluding him from presenting oral argument on the summary judgment motion. Finally, he contends that—even absent any opposition—there were triable issues of fact precluding summary judgment. We find no merit to these contentions.
We likewise find no merit to the City’s renewed contention that appellant’s notice of appeal was untimely. We previously denied the City’s motion to dismiss the appeal, rejecting the same arguments that the City raises on appeal. We see no basis to reconsider our ruling.
I. The Trial Court Properly Exercised Its Discretion in Denying Appellant’s Application to Continue the Summary Judgment Hearing.
Code of Civil Procedure section 437c, subdivision (h) provides in relevant part: “If it appears from the affidavits submitted in opposition to a motion for summary judgment... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” The purpose of this provision is to mitigate the harshness of summary judgment for a party who has not had the opportunity to marshal evidence to oppose the motion. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253; Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.) “There must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented.... A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner.” (Cooksey v. Alexakis, supra, at p. 257.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
While the trial court’s denial of a request for continuance is typically reviewed for an abuse of discretion (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270; Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 190), the trial court’s discretion is limited where a party makes the requisite showing by declaration under section 437c, subdivision (h) and “a continuance may be mandated. [Citation.]” (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770–771.)
To invoke the mandatory provisions of section 437c, subdivision (h), “‘[t]he nonmoving party seeking a continuance “must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]” [Citation.]’ Generally speaking, the party seeking the continuance must ‘provide supporting affidavits or declarations detailing facts that would establish the existence of controverting evidence.... [Citation.]’ [Citation.]” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.)
Appellant filed his first ex parte application seeking a continuance on February 27, 2009. In support of the application, appellant’s counsel submitted a declaration which contained the following statement concerning the facts to be obtained and the reasons to believe they existed: “On February 24, 2009, I took the depositions of Officers Ruiz and Banuelos. These officers arrested Plaintiff Arellano on April 28, 2006 and are central to Plaintiff’s allegations against the City of Los Angeles. Also on February 24, 2009, pursuant to a discovery request, Ms. Smith personally served responsive evidentiary documents, which are also pertinent to Plaintiff’s theories of liability against Defendant City of Los Angeles. In consideration of the March 16, 2009 motion for summary judgment hearing date and the March 2, 2009 deadline by which to file papers in opposition to said motion, I ordered an expedited transcript of the officer depositions. I received electronic versions of the deposition transcripts on February 26, 2009.”
Section 437c, subdivision (h) “makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) Without “a statement which suggests what facts might exist to support the opposition to the motion[], ” the trial court acts within its discretion in finding the declaration insufficient to support granting a continuance. (Ibid.) Here, appellant’s counsel’s declaration fell short of showing that facts “essential to justify opposition may exist” as required by section 437c, subdivision (h). Representations that the officers’ depositions were “central” to appellant’s allegations or that “evidentiary documents” were “pertinent” failed to identify the specific facts that appellant sought to obtain if given additional time. In this respect, counsel’s declaration was no different than that in Lerma v. County of Orange, supra, 120 Cal.App.4th at page 715, where the attorney “stated in a conclusory fashion that he believed he would ‘be able to obtain the necessary evidence and declarations to successfully oppose the motion and establish a triable issue of fact to each of the claimed undisputed facts raised by the city.” (See also California Automobile Ins. Co. v. Hogan (2003) 112 Cal.App.4th 1292, 1305 [declaration did not meet showing required for a mandatory continuance where it failed to set forth “what facts appellants hoped to obtain through further discovery or show [] how such facts were essential to opposing” summary judgment]; Roth v. Rhodes, supra, 25 Cal.App.4th at p. 548 [declaration did not meet showing required for a mandatory continuance where it indicated two depositions remained to be completed and expert opinions were to be received, but failed to suggest what facts might exist to support the opposition to summary judgment].)
Appellant’s counsel’s reasons as to why additional time was needed were likewise deficient. Counsel, a solo practitioner, declared that he was required to file opposition to summary judgment motions in two other cases on February 24 and 25, 2009. He further declared that he had been negatively impacted by a friend’s death that had occurred in mid-February. But having a busy law practice has never been a justification for additional time, particularly absent any explanation why the evidence necessary to oppose summary judgment was not obtained during the preceding months that the action was pending. (Cf. Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1355 [“‘stresses of a busy law practice, ’ the ‘hurry to meet the deadline, ’ and ‘several concurrent obligations due to other pending litigation’” did not constitute excusable neglect for failing to file a continuance request].) Likewise, mourning the loss of a friend has never been viewed as justification for a continuance under section 437c, subdivision (h). (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 172 [appellant’s counsel’s own illness one and one-half weeks prior to the hearing date did “not explain the delay in seeking a continuance”]; compare Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 713 [reasons for additional time shown where attorney’s timely declaration detailed his own life-threatening illness and hospitalization].)
“When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the court’s discretion.” (Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 716; accord, Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 253; Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325–326.) Accordingly, even though appellant’s counsel’s declaration in support of the February 27, 2009 continuance application did not justify a mandatory continuance, we examine whether the trial court abused its discretion in failing to grant a continuance. Moreover, given that an application for a mandatory continuance under section 437c, subdivision (h) must be made “by ex parte motion at any time on or before the date the opposition response to the motion is due, ” appellant’s March 16, 2009 continuance request fell outside the scope of the statute and may only be examined for an abuse of discretion. (Cooksey v. Alexakis, supra, at pp. 253–254.)
The trial court acted well within its discretion in denying appellant’s first continuance request. Appellant did not meet his burden to establish good cause for a continuance. (See Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 716.) He failed to describe with any level of specificity what outstanding evidence was necessary to oppose summary judgment and failed to explain why such evidence had not been obtained through discovery any earlier. Diligence in pursuing discovery is a recognized factor in considering any motion for a continuance. (See, e.g., Cal. Rules of Court, rule 3.1332(c)(6) [Circumstances that may indicate good cause to continue a trial include “[a] party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”]; Wachs v. Curry (1993) 13 Cal.App.4th 616, 624 [proper exercise of discretion to deny continuance where affidavit failed to show why evidence “could not have been obtained in the three months between” summary judgment motion filing and hearing], disapproved on another point in Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 987, fn. 6.)
Likewise, we have no difficulty concluding that the trial court properly exercised its discretion in denying appellant’s second continuance request, filed on the day of the summary judgment hearing. In addition to repeating the reasons cited in his earlier application, appellant’s counsel’s declaration added only that the City had deposed Rabay on March 10, 2009, and Rabay’s testimony established that appellant had not been arrested at the apartment complex and no police officer had accompanied him in the ambulance ride to the hospital. The trial court expressly determined that Rabay’s proffered testimony was immaterial to the issues on summary judgment. Under these circumstances, we are guided by the court’s determination in FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 75–76, that it is a proper exercise of discretion to deny a summary judgment continuance where the party seeking the continuance has had ample time to conduct discovery and the additional discovery sought would pertain to irrelevant issues. (See also Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 492 [trial court did not abuse its discretion in denying a last-minute, additional continuance request, where a clear implication from the facts was that that plaintiff was attempting to avoid summary judgment as long as possible]; Mahoney v. Southland Mental Health Associates Medical Group, supra, 223 Cal.App.3d at pp. 170–173 [trial court did not abuse its discretion in denying the plaintiff’s request for a second continuance made after the statutory period for filing an opposition had expired].)
II. The Trial Court Properly Exercised Its Discretion in Precluding Oral Argument on the Merits of the Summary Judgment Motion.
Appellant next contends that summary judgment should be reversed because the trial court abused its discretion by declining to hear further oral argument on the summary judgment motion after denying his request for a continuance. We disagree.
At the beginning of the hearing, the trial court asked the parties to address appellant’s ex parte application to continue the hearing. During the course of those arguments, the trial court inquired about and counsel discussed the effect, if any, of Rabay’s declaration on the merits of the summary judgment motion. Indeed, the City’s counsel argued at length about how the facts presented supported the granting of the motion, concluding her argument by stating that, according to the undisputed facts, “the officers had probable cause to arrest.” Appellant’s counsel, on the other hand, confined his arguments to the merits of the ex parte application and carefully avoided addressing the merits of the summary judgment motion. Only when the trial court denied the ex parte application and concurrently ruled that there had been no timely opposition did appellant’s counsel then attempt to address the summary judgment motion. At that point, the trial court stated that it would not hear further oral argument because of the untimely opposition. Notwithstanding that comment, appellant’s counsel then argued that he needed to make a record about Rabay’s declaration, which he claimed went “directly to the heart of the probable cause issue.” The trial court disagreed, responding that it had “concluded that the two points that he [Rabay] makes in his declaration make no difference and that they are not material.” The trial court then reiterated that it would not hear further argument, explaining that appellant should have filed a timely opposition.
Appellant characterizes this exchange as the denial of his right to present oral argument at the summary judgment hearing. He relies on Brannon v. Superior Court (2004) 114 Cal.App.4th 1203, 1211, where the court held that the statutes governing summary judgment motions, as well as the applicable California Rules of Court, required that a party be given the opportunity to orally argue a summary judgment motion. There, after the parties had filed their papers in support of and in opposition to the motion, the trial court issued a “written ‘telephonic’ order denying the summary judgment motion, ” which identified the specific evidence creating triable issues of fact and providing that “‘[n]o oral argument will be entertained.’” (Brannon v. Superior Court, supra, at p. 1206.) After concluding that the statutes governing motions—in particular summary judgment motions—and the rules relating to hearings precluded the summary denial of oral argument, the court also reasoned that the opportunity for oral argument was important because of the far-reaching consequences of summary judgment: “An oral hearing on a summary judgment motion will ensure the parties’ critical pretrial rights are protected by providing the parties with an opportunity to address perceived legal and factual misconceptions in the court’s tentative rulings, and will also enhance the quality of justice, reduce the need for appellate and/or writ review, and promote the appearance of fairness.” (Id. at pp. 1210–1211.)
The Brannon court highlighted the limitations of its decision: “We further emphasize that trial courts ‘retain extensive discretion regarding how [a summary judgment] hearing is to be conducted, including imposing time limits and adopting tentative ruling procedures....’ [Citation.] Although a court may not refuse entirely to hear oral argument on a summary judgment motion, a court has substantial discretion to impose reasonable limitations, including to limit the time and subject matter of the argument. Further, a court has broad discretion to determine that a party waived the right to oral argument by failing to timely and properly invoke the procedure.” (Brannon v. Superior Court, supra, 114 Cal.App.4th at p. 1211.) The court cited Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 260 (Mediterranean), where the court reversed a grant of summary judgment after the trial court had declined to hold a hearing on the motion, observing that “[w]hile judges retain considerable discretion to limit oral argument, they cannot do away with it altogether. There is a fundamental difference between demanding brevity and imposing silence.”
Here, the trial court curtailed but did not eliminate appellant’s opportunity to present oral argument. During the course of the argument on the ex parte application, the City’s counsel availed herself of the opportunity to present argument on the summary judgment motion while appellant’s counsel did not. Rather, appellant’s counsel requested the opportunity to “make a record” at the conclusion of the hearing, after the trial court had already indicated its ruling. At that point, because appellant had filed no written opposition and appellant’s counsel had said nothing indicating that there was outstanding evidence that was sufficient to create a triable issue of fact, the trial court precluded any further oral argument. Regardless of whether we construe the trial court’s preclusion as the imposition of a reasonable limitation on oral argument or as a determination that appellant waived the right to present further oral argument by failing to comply with the summary judgment procedures, we conclude that the limitation was an appropriate exercise of the trial court’s discretion.
In any event, that the undisputed evidence supported the grant of summary judgment (see section III, post) demonstrates that no prejudice resulted from limiting appellant’s opportunity to present further oral argument. (See Mediterranean, supra, 66 Cal.App.4th at p. 267 [denial of oral argument at summary judgment hearing is not reversible error per se and requires a showing of prejudice].)
III. The Trial Court Properly Granted Summary Judgment.
Appellant’s final challenge is to the grant of summary judgment itself. He contends that the City’s separate statement of undisputed facts revealed triable issues of material fact. We review a grant of summary judgment de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843–857.) Summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....” (§ 437c, subd. (c).)
Typically, we consider all the evidence set forth in the moving and opposition papers. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) Here, however, appellant failed to file a timely opposition to the motion and never filed a separate statement identifying material facts in dispute. On this basis alone, we could conclude that summary judgment was properly granted. (See § 437c, subd. (b)(3); Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 568–569.) Nonetheless, we will evaluate the City’s motion to determine whether the undisputed evidence negated appellant’s claims. Because we “examine only papers before the trial court when it considered the motion, and not documents filed later” (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19), we will not consider the officers’ depositions that appellant never offered in the trial court but included in the appellate record.
The City moved for summary judgment on the ground that the undisputed evidence established probable cause to arrest as a matter of law, thereby precluding appellant’s claims for “unlawful seizure” and “unlawful detainment.” Penal Code section 847, subdivision (b), provides that “[t]here shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer... acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances: [¶] (1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.” If an individual officer is not liable by reason of Penal Code section 847, the City is consequently immune from liability pursuant to Government Code section 815.2, subdivision (b), which provides that “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
Though appellant’s claims flow from his arrest, he alleged several distinct causes of action against the City. But because he has confined his arguments on appeal to the question of probable cause, we deem any other challenge to the grant of summary judgment waived. (See, e.g., Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [issues not raised in appellant’s brief are deemed waived or abandoned].)
“An arrest is valid if supported by probable cause. Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.” (People v. Kraft (2000) 23 Cal.4th 978, 1037; accord, Johnson v. Lewis (2004) 120 Cal.App.4th 443, 452.) Probable cause is measured by an objective standard. (Johnson v. Lewis, supra, at p. 454; People v. Limon (1993) 17 Cal.App.4th 524, 539.) In determining that information from a private citizen may provide the requisite level of suspicion, the court in People v. Ramey (1976) 16 Cal.3d 263, 269 explained: “[P]rivate citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable.... [N]either a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities.” “When... the facts known to an officer are sufficient to constitute probable cause to arrest, the possibility of an innocent explanation does not vitiate probable cause and does not render an arrest unlawful.” (Johnson v. Lewis, supra, 120 Cal.App.4th at p. 453.) “[T]he validity of an arrest is measured by whether the facts known to the officer support a reasonable suspicion of criminal activity, not whether the facts are sufficient to convict.” (Ibid.; see also Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844 [“‘Probable cause may exist even though there may be some room for doubt’”].)
According to the evidence offered in support of summary judgment, appellant was arrested for making criminal threats, a violation of Penal Code section 422. That provision prohibits a person from making a willful threat to commit a crime that will result in great bodily injury to another person, with the specific intent that it be taken as a threat, “even if there is no intent of actually carrying it out.” (Pen. Code, § 422.) The elements necessary to establish the offense are: “‘(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ” (2) that the defendant made the threat “with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, ” (3) that the threat... was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, ” (4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ” and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.’ [Citations.]” (In re George T. (2004) 33 Cal.4th 620, 630.) Penal Code section 422 “does not require the showing of an immediate ability to carry out the stated threat.” (In re David L. (1991) 234 Cal.App.3d 1655, 1660.) The determination of whether a person intended conduct as a threat can be based on all of the surrounding circumstances. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.)
Here, the City’s evidence established that the officers had probable cause to believe that appellant had violated Penal Code section 422. As evidence of the threats, Officer Ruiz declared that the victim, Rasou, reported that appellant had pointed a finger toward him to simulate a gun and said both “‘If you don’t get out, I’m gonna send someone over here to put a gun to your head and you’re gonna move out of here, ’” and “‘I have lots of money, I can have someone come here and make you get out of here.’” Evidence of appellant’s actions at the time he made the threat—including pointing a simulated gun at Rasou and blocking him from leaving—indicated that the statements were to be taken as threats. (See People v. Wilson (2010) 186 Cal.App.4th 789, 814 [threat made with specific intent that it be taken so where the defendant simulated pulling a trigger while saying he would “blast” the victim and said he had killed before].) The combination of appellant’s statements that he intended to send someone with a gun to make Rasou move and that he had the means to do so established that the threats were specific and unequivocal. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433 [requiring that the threat be “sufficiently” rather than “absolutely” unequivocal, unconditional, immediate and specific], italics omitted; see also In re David L., supra, 234 Cal.App.3d at p. 1660 [to be specific, the threat need “not communicate a time or precise manner of execution”].) Officer Ruiz’s declaration constituted evidence that Rasou was in sustained fear for his safety. Rasou ran away from appellant, seeking help from a neighbor to call the police. Gleason corroborated Rasou’s version of the events, telling Officer Ruiz that Rasou was afraid because appellant had threatened to kill him. Finally, the surrounding circumstances established that Rasou’s fear was reasonable. (See People v. Ortiz (2002) 101 Cal.App.4th 410, 417.)
The City’s undisputed evidence established that the officers had probable cause to arrest appellant for making criminal threats. We reject appellant’s argument that the timing of his arrest—that is, whether it was before or after he was transported to the hospital—established a triable issue of fact. (See Hamilton v. City of San Diego, supra, 217 Cal.App.3d at p. 845 [once probable cause has been established, officers have no further duty to investigate before incarcerating the suspect].) Nor did the fact that appellant disputed Rasou’s version of the events vitiate probable cause. Indeed, although appellant denied making threats when questioned by Officer Ruiz, his version of the events was inconsistent. Appellant initially stated that Rasou began to choke him when the two were arguing inside Rasou’s unit, but later claimed that their confrontation took place outdoors and that Rasou pushed instead of choked him.
In view of the undisputed evidence of probable cause, summary judgment was properly granted because the City was immune from liability. (Gov. Code, § 815.2; Pen. Code, § 847.)
DISPOSITION
The judgment is affirmed. The City is entitled to its costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.